If you do workplace investigations, here are some things you need to know about Weingarten rights.
When a union employee is subject to an investigatory interview, the employee has special rights. Some experts suggest that in a sense of fairness and employee cohesion, non-union employees should receive the same considerations as a union employee. A company supervisor could perform the same responsibilities as the union steward.
An investigative interview happens when:[1]
- Management questions an employee to obtain information, and
- The employee has a reasonable belief that discipline or other adverse consequences may result.
Under the Supreme Court’s Weingarten decision, the following rules apply to investigatory interviews:
- The employee can request union representation before or at any time during the interview.
- When the employee asks for representation, the employer must choose from among three options:
- Grant the request and delay questioning until the union representative arrives.
- Deny the request and end the interview immediately.
- Give the employee a choice of having the interview without representation or ending the interview.
3. If the employer denies the request for union representation and continues the meeting, the employee can refuse to answer questions.
4. Employers sometimes assert that the only function of a union steward at an investigatory interview is to observe the discussion — in other words, to be a silent witness. This is incorrect. The steward must be allowed to advise and assist the employee in presenting the facts. When the steward arrives at the meeting:
- The supervisor or manager must inform the steward of the type of misconduct being investigated.
- The steward must be allowed to have a private meeting with the employee before questioning begins.
- The steward can speak during the interview, but cannot insist that the interview be ended.
- The steward can object to a confusing question and can request that the question be clarified so that the employee understands what is being asked.
- The steward can advise the employee not to answer questions that are abusive, misleading, badgering, or harassing.
- When the questioning ends, the steward can provide information to justify the employee’s conduct.
An employer does not have to inform an employee that he or she has right to union representation.
Questions and Answers Regarding Weingarten Rights
Steward’s Request
Q. If I see a worker being questioned in a supervisor’s office, can I ask to be admitted?
A. Yes. A steward has a right to insist on admission to a meeting that appears to be a Weingarten interview. If the interview is investigatory, the employee is allowed to indicate whether he or she desires the steward’s presence.
Coercion
Q. An employee, summoned to a meeting with her supervisor, asked for her steward. The supervisor said, “You can request your steward, but if you do, I’ll have to bring in the plant manager, and you know how temperamental she is. If we can keep it at this level, things will be better for you.” Is this a Weingarten violation?
A. Yes. The supervisor is raising the specter of increased discipline to coerce an employee into abandoning her Weingarten rights.
Can an employee refuse to go to a meeting?
Q. A supervisor told an employee to report to the personnel office for a “talk” about his attendance. The employee asked to see his steward, but the supervisor said no. Can the employee refuse to go to the office without seeing his steward first?
A. No. Weingarten rights do not arise until an investigatory interview actually begins. The employee can only refuse to go to a meeting if a supervisor makes clear in advance that union representation will be denied at the interview.
Medical Examination
Q. Our employer requires medical examinations when workers return from medical leaves. Can an employee insist on a steward during the examination?
A. No. A run-of-the-mill medical examination is not an investigatory interview.
Lie Detector Test
Q. Do Weingarten rights apply to polygraph tests?
A. Yes. An employee has a right to union assistance during the pre-examination interview and the test itself.
Sobriety Test
Q. If management asks an employee if he will submit to a test for alcohol, Does Weingarten apply?
A. The employee must be allowed to consult with a union representative to decide whether or not to take the test.
Locker Search
Q. If a guard orders an employee to open his locker, can the employee insist on a steward being present?
A. No. A locker search is not an investigatory interview.
Counseling Session
Q. An employee was given a written warning for poor attendance and told she must participate in counseling with the human relations department. Does she have a right to a union steward at the counseling session?
A. This depends. If notes from the sessions are kept in the employee’s permanent record, or if other employees have been disciplined for what they said at counseling session, an employee’s request for a steward would come under Weingarten. But if management gives a firm assurance that the conversations will remain confidential, Weingarten rights would probably not apply.
Private Attorney
Q. Can a worker insist on a private attorney before answering questions at an investigatory interview?
A. No. Weingarten only guarantees the presence of a union representative.
Recording the Interview
Q. Can a supervisor tape record an investigatory interview?
A. This depends. The Weingarten decision itself does not forbid an employer from tape recording an investigatory interview. But if this represents a new policy on the part of the employer, the steward can object on the ground that the union did not receive notice and an opportunity to bargain.
Questions about Others
Q. If a worker is summoned to a meeting and asked about the role of other employees in illegal activities, can he insist on assistance from a union representative?
A. Yes. Although the employee may not be involved in wrongdoing himself, he risks discipline if he refuses to inform on others or admits that he was aware of illegal activities. Because what he says at the meeting could get him in trouble, he is entitled to union representation.
Obstruction
Q. The company is interviewing employees about drug use in the plant. If I tell my people not to answer questions, could management go after me?
A. Yes. A union representative may not obstruct a legitimate investigation into employee misconduct. If management learns of such orders, you could be disciplined.
Why do investigators need to know aboutWeingarten rights? Because failing to adhere to them can lead to charges of unfair labor practices and/or could be grounds for overturning any disciplinary actions that result from the interviews. In a broader sense, respecting Weingarten rights when an employee asks you to are a vital part of a fair and legitimate investigative process.
To find out more about Weingarten rights, see the National Labor Relations Board site.
[1] Schwartz, Robert M., The legal Rights of Union Stewards, Internet
About the author:
William F. Blake, MS, CPP, CFE has more than 60 years’ experience in civil and criminal investigations, security, executive protection, loss prevention, disaster recovery planning, and counterintelligence operations. He is a retired Chief Warrant Officer of the U.S. Army, where he served as Military Intelligence Special Agent and Criminal Investigation Division Special Agent. As a military instructor, he oversaw the criminal investigation curriculum attended by members of the Department of Defense. After retiring from the military, he worked as a security manager and investigator for a major bank. Blake has a B.S. in police administration and an M.S. in foundations of education and is the author of several books on security and investigations.